Burns v. Stevens , 236 Mich. 447 ( 1926 )

I find myself unable to agree with the conclusion reached by Mr. Justice SNOW. The bill of complaint herein was filed after the trial court had announced its decision in a suit brought by plaintiff to restrain defendant from representing herself as his wife and to obtain a judicial determination that they were not legally married. The decree therein granting plaintiff relief as prayed for was affirmed by this court. Burns v. Stevens, ante, 443. It is plaintiff's claim in this case that the $1,000 down payment on the contract was made up of $600 of his own money and $400 borrowed from defendant; that to secure to defendant the repayment of this $400 her name was, at her request, inserted in the contract with his as a vendee. It is her claim that the $600 was paid out of their joint savings and that it was agreed at the time the contract was entered into that they should hold the title jointly, with the right of survivorship in the one who should outlive the other. They were both named as vendees in the contract as written. The burden is on him to establish his claim that her name was inserted therein only for the purpose of securing repayment to her of the $400. Were this issue to be determined solely on his testimony and hers, there would be justification in denying him relief. The vendors, Mr. and Mrs. Ries, were called as witnesses. He testified:

"She would like to have her name on the contract, so if anything happened to Mr. Burns, see, he was an officer, if anything should happen to him, she would be secured.

"Q. For what, secured for what?

"A. For the money she put into it.

"Q. What money did she say she put into it?

"A. Just at the time she didn't say, but shortly afterwards she said $400. * * *

"Q. Did Miss Stevens say anything to you at the time the original contract was drawn as to whether upon being paid the amount that she put up that she would make a release to Mr. Burns?

"A. Yes, sir.

"Q. What did she say?

"A. Said when Mr. Burns paid me up he would pay her and then she would release it."

She testified:

"A. Well, she said that the reason she wanted her name on it was because she was furnishing part of the money so as to make a larger payment and she wanted some security and she said that was the only security that Mr. Burns could give her.

"Q. Did she say anything about giving a release when she got her money?

"A. Yes.

"Q. What did she say?

"A. She said after he got us paid then he was to pay her and he was to get the deed."

It is also significant that the moneys in the bank (their joint savings, as defendant claims) were deposited by her in his name alone.

On this record, and in view of the fact that the trial court heard and saw the witnesses, I am unwilling to reverse his finding, stated as follows:

"I am convinced that the contract was given for the purpose of securing to defendant the repayment of the sum of $400 and that the idea of a joint interest in the property did not occur to her until after the estrangement between herself and plaintiff; that she secured possession of the deed and recorded it for the purpose of fortifying herself in this claim."

In my opinion the rule that if the parties to a suit arein pari delicto a court of equity will leave them where they have placed themselves should not be here applied. The land contract is in no way tainted with illegality. The defendant does not claim that any fraud was practiced upon her in connection with the transaction. It is doubtless unusual to secure the payment of a loan advanced as a part of the price of property purchased under a land contract by having the lender's name inserted in the contract, but it is sometimes done.Domboorajian v. Domboorajian, 235 Mich. 668. The question to be determined in this case, as it was in that, is whether the party acquired an interest in the property or a security for the money advanced. The manner in which they were then living is immaterial to the issue except in its bearing upon the weight to be given to their testimony. The doors of courts are not closed to people who lead immoral lives when contracts between them untainted with illegality or fraud are involved.

The decree is affirmed, with costs to appellee.

BIRD, C.J., and STEERE, WIEST, CLARK, and McDONALD, JJ., concurred with SHARPE, J.